Gov. Phil Murphy on Wednesday signed controversial legislation that overhauls New Jersey’s two-decades old public records law, turning back critics who said the fast-tracked measure will weaken transparency and make it harder for citizens to see what their governments are doing.
The Democratic governor acknowledged he was disappointing progressive advocates, including many who have strongly supported him. But he disagreed with concerns that it “will both enable corruption and erode trust in our democracy.”
“If I believed that this bill would enable corruption in any way, I would unhesitatingly veto it,” Murphy said in a signing statement. “I simply reject the idea that those calling for the bill’s passage are part of a nefarious plot to evade transparency and accountability.”
The bipartisan bill (S2930) passed both houses of the state Legislature last month to reaction rarely seen at the Statehouse in Trenton: boos and chants from citizens groups in the gallery. Among lawmakers, support and opposition to the measure was not divided evenly among political parties.
Advocates turned their attention to Murphy after the bill passed, with several attending a meeting with the governor in which they pressed him to reject it. Some warned that signing the measure would hurt Murphy’s reputation as a progressive Democrat.
Murphy kept his cards close and declined to take a public position on the bill in recent weeks, though multiple sources told NJ Advance Media he negotiated the measure’s passage with top lawmakers.
The signing drew instant outrage from good government groups, with the League of Women Voters calling it “a dark day for our democracy.”
“It’s shameful that despite overwhelming concerns from their constituents, lawmakers fast-tracked, and the governor signed, a bill that severely restricts access to government records and limits the public’s ability to hold elected officials accountable,” Sarah Fajardo, policy director of the ACLU of New Jersey, said in a statement.
“But we know that voters will have the last word at the ballot box next year — and maybe then Legislators will remember who they are meant to serve.”
The law was cheered by local government organizations that had called for its passage.
The New Jersey League of Municipalities said the measure “is a product of years of discussion and compromise and, taken as a whole, modernizes a two-decades-old statute that was a product of the 20th, not the 21st century.”
Here is a primer on what the new law means and what will happen now.
What is OPRA?
New Jersey’s Open Public Records Act sets rules for records requests made by the public and the media that can cover everything from salaries of government officials to public meeting information and police body cam footage.
Records requests have often been made to see what the government does behind closed doors and is used by everyday residents, reporters, and civil rights organizations.
So why make changes?
Supporters of the bill, pushed by lobbyists representing county and municipal governments said the open records law was being abused and that government clerks were overwhelmed with requests. Opponents said the changes would allow the government to get away with more corruption.
In January — before a draft of the bill circulated — state Senate President Nick Scutari, D-Union, said it was needed to rein in data brokers who flooded municipal clerks’ inboxes with nonstop requests. But the version that passed Legislature on May 13 excised mentions of limiting data brokers’ access.
“Interestingly, although they sold this as a bill to stop commercial requestors, it actually gives them priority,” said CJ Griffin, director of the Justice Gary S. Stein Public Interest Center at the law firm of Pashman Stein Walder Hayden in Hackensack. “Not only did they remove the proposed ban on data brokers, now they’ve given businesses the opportunity to get their OPRA requests fulfilled faster than the public and press.”
Griffin on Wednesday said rejected Murphy’s assertion that the new law would do no harm, saying to the governor: “You’re making your legacy worse.”
Scutari said the changes would not have an impact on what public records are available, an assertion disputed by activists.
Tom Cafferty, attorney for the New Jersey Press Association, said the bill adds “all kinds of discretionary and vague provisions” that will thwart requests.
John Donnadio, director of the New Jersey Association of Counties, emphasized that “there’s some good things in there in terms of modernizing and streamlining the process. Allowing county and municipal governments to post records online is going to be a big help to them and to taxpayers.”
Sources say the bill was negotiated by legislative leaders and the governor’s office as part of the horse-trading the accompanies the state budget season.
With furor surrounding the measure, several lawmakers who had voted yes changed their vote, though that didn’t stop the legislation from passing. That included some lawmakers in their first year in office who may be vulnerable in next year’s state Assembly elections.
What are the concerns?
The new law will allow governments to sue people for requesting too much information and make it harder for lawyers to recoup fees against the government for withholding records — something opponents say would dissuade members of the public and news reporters from challenging local and state governments in court.
Murphy said the bill modernizes the OPRA process and vowed to “closely monitor” areas that drew the most opposition.
“I am confident that both our courts and the (Government Records Council) will utilize their new discretion regarding attorney’s fees wisely,” he said. “My administration will monitor the implementation of this provision closely to ensure there are no adverse impacts.”
Murphy said he believes a law he signed last year restricting meritless lawsuits would “allow individuals to obtain expedited dismissals of any improper lawsuits brought under this new provision of OPRA.”
Griffin said the measure also creates new exemptions. The new law exempts metadata — now fully available — except for a few limited categories. It also exempts animal license information, which animal rights groups use for important animal welfare work, Griffin said.
The law has ramifications for police records, too.
“Every ‘owner’s manual’ is exempt under the bill, which means people couldn’t learn more about the body cameras the police department is using. And on and on,” Griffin said.
The legislation also prohibits submitting an identical OPRA request to multiple agencies — a strategy NJ Advance Media used when it published “The Force Report,” a 2018 award-winning series on law enforcement’s use of excessive force, Griffin said.
Journalists also would be barred from making the same data request across different government entities, such as for salary information.
What happens now?
The law takes effect in 90 days.
Cafferty of the New Jersey Press Association said with the dwindling fortunes of news-gathering organizations, he expects fewer challenges to record denials will be mounted.
“I think that is the reality of where we are today,” he said.
Will there be a court challenge?
It’s possible advocates could file a lawsuit challenging the law. That could delay its implementation and lead the issue to go from being litigated in the Legislature to being re-litigated in court.
The New Jersey Press Association said it hadn’t decided if it would take action in court to challenge the new law.
Jelani Gibson is a cannabis and politics reporter for NJ.com. He can be reached at jgibson@njadvancemedia.com. Follow him on X @jelanigibson1 and on LinkedIn.
Brent Johnson may be reached at bjohnson@njadvancemedia.com. Follow him on X at @johnsb01.
Susan K. Livio may be reached at slivio@njadvancemedia.com. Follow her on Twitter @SusanKLivio.
